At 06:03 PM 2/19/97 LOCAL, NMCummings wrote:
>Paid some attention to the discussion about copyrights especially in terms of
>"copying" an artifact -- the example was for a period dress I think.  Okay,
>here's one....
>
>Person contacts a museum and would like to do needlepoint patterns based on
>some embroidery that we have in our collection.  We sell them photos of the
>items in question and they do the necessary work to turn them into
patterns on
>a grid and sell the patterns.
>
>What would we charge?  We charge for the photos, and we charge for the
>reproduction of said photos...but they're not going to be reproducing the
>actual photos in their book or patterns I don't think.
>
>Thoughts? Comments? Reply here or directly to <[log in to unmask]> my
>work e-mail address.

Let's say that the original work is in the public domain.  Let's also
assume that the photograph of this work is copyrightable (a debatable
notion) and/or that purchase of the photo establishes a contract that
stipulates that the purchaser must obtain permission before it can be
reproduced (typical). In this case the photograph you sell is not being
reproduced; rather, it is being used only as a surrogate to get to the
original.  If a person could copy the original public domain work without
obtaining license from the museum, then I'd say that the copy from the
photograph, unless it contained some element that can be attributed solely
to the photograph, need not be licensed.  If there were some degree of
originality in the photograph, itself, sufficient to warrant claiming that
the photograph was copyrightable in its own right, then that element, if
introduced into the hand-stitched copy would prove that the hand-stitched
copy was a derivative work.  Such a scenario is unlikely, however.

As long as we have the concept of the public domain, I think that we should
abide by the spirit in which it was invented and relinquish claims of
control that should not be supported.

I say this knowing that it is not difficult for any museum to prevent much
unwanted copying of works, even those they have thas are in the public
domain.  All they need do is to make it a condition of entry that no
cameras are allowed or that photographs taken within the museum may be
taken under the condition that they are not used for profit or
publications.  As I understand it, contractual obligations supersede
copyright and fair use claims.  Copies made from published images are
harder and probably impossible to protect.

Such a strategy will certainly work in museums where works are privately
held or held by a board of trustees.  It is not clear whether such
stipulations will be valid when the works are public property.

A little editorial comment: We all wish museums to prosper and receive
sufficient (or better) funds to use to fulfill their various mandates, and
we all can sympathize with the need to develop whatever income they can out
of their holdings.  But isn't it a shame that these works -- works which
are hold in trust for civilization -- works that are no longer
copyrightable -- should be held for ransom by the very institutions in
which they have been deposited to manifest this destiny.  Works of
literature that have made it to the public domain can be used in any way
one wishes; why can't individuals be permitted to do the same with images
of public domain art?  If creativity is born from creativity, when we
imprison the past, we shackle the present.


================================================
Robert A. Baron,
Museum Computer Consultant
P.O. Box 93, Larchmont, N.Y. 10538
mailto:[log in to unmask]
See "Copyright and Fair Use: The Great Image Debate"
http://oregon.uoregon.edu/~csundt/vrcfu.htm
================================================